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USMC | DRB | 2005_Marine | MD0501493
Original file (MD0501493.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01493

Applicant’s Request
The application for discharge review was received on 20050908. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance discharge review before a traveling panel closest to NY, NY/Queens NY/Manhattan NY. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060531. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“In order to live a productive and contributing life as an Emergency Medical technician this will allow me to continue on with my life and provide for my family I strongly believe that I paid the price for the situation I found myself in and If given a chance, I will take this opportunity to walk the strait and narrow.

I have also done volunteer work in California before leaving and I have been doing volunteer work here in NY for the last year.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
Job/Character Reference ltr from Dr. D_ M_, PhD., President, Corona Community Volunteer Ambulance Corps, dtd August 25, 2005
Certification of completion for EMT-Basic, dtd August 19, 2004
 LaGuardia Community College/CUNY 2005-2006 Academic Calendar

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940609 - 19940626      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19940627             Date of Discharge: 19980605

 Length of Service (years, months, days):

 Active: 03 11 09 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              24 days

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 44

 Highest Rank: LCpl                                  MOS: 1345

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (11)                               Conduct: 4.0 (11)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Certificate of Commendation, Rifle Sharpshooter Badge, Meritorious Unit Commendation (w/1 Star)


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

940607:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
951013:  NJP for violation of UCMJ, Article 91: In that LCpl D_(Applicant) did at Barracks 5696, 3d SptBn, 3d FSSG on or about 2330, 951002, did treat with disrespectful language towards Cpl W_, a noncommissioned officer who was then in the execution of his duties by saying to him “If you want to talk to me, you come up here,” or words to that effect.
 Violation of UCMJ, Article 92: In that LCpl D_(Applicant) having knowledge of a lawful order issued by Cpl W_, an order which it was his duty to obey, did at 3d SptBn on or about 2330, 951002, fail to obey the same by surrendering his ID card.
Violation of UCMJ, Article 92: In that LCpl D_(Applicant) did at 3d SptBn, 3d FSSG on or about 0605, 950924, violate a lawful written order, to wit: Base Order P11240.1B by wrongfully driving without a valid driver’s license.
Violation of UCMJ, Article 92: In that LCpl D_(Applicant) did at 3d SptBn, 3d FSSG on or about 0605, 950924, violate a lawful written order, to wit: Base Order P11240.1B by knowingly operating an unsafe vehicle.
          Award: Forfeiture of $223 per month for 1 month, restriction for 14 days. Forfeiture suspended for 3 months. Not appealed.

951027:  Forfeiture of pay awarded at NJP on 951013 vacated.

960130:  Counseling: Advised of deficiencies in performance and conduct (Minor military infractions as evidenced by NJP on 951013 for violations of Art. 91 & 92(x3). Vacation of suspended fine on 951027 from NJP received on 951013 due to violation of Art. 134 and NJP on 960130 for violation of Art. 86(x2). This personal behavior is incompatible with good order and discipline and will not be condoned nor tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement.

960201:  NJP for violation of UCMJ, Article 86: Did at SptCo, 3d SptBn, 3d FSSG at 0725 on 960118, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: at Bldg 5626 absent himself from formation and did so remain absent until 0815, on 960118
 Violation of UCMJ, Article 86: Did at SptCo, 3d SptBn, 3d FSSG at 0725 on 960124, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: at Bldg 5626 absent himself from formation and did remain so absent until 0815 on 960124.
          Award: Forfeiture of $300 per month for 1 month, restriction for 30 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.

961209:  Counseling: Advised of deficiencies in performance and conduct (UA from 0700 to 0900 on 961121. SNM advised that further instances will result in NJP.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant choose to make a statement.

961211:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty on or about 0700, 961204 to 0705, 961204.
         Violation of UCMJ, Article 86: UA from appointed place of duty on or about 0430, 961209 to 0750, 961209.
         Award: Forfeiture of $228 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

970124:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence and financial responsibility.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose not to make a statement.

970207:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0700, 970116 to 1230, 970116.
         Award: Forfeiture of $235 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

970411:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence 970403 from 0700 to 0715.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Marine refuses to acknowledge this entry.

970601:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the Prom Prd on June 97 because of lack of initiative. Applicant chose to make a statement.

970701:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the Prom Prd of Jul 97 because of lack of leadership. Applicant chose to make a statement.

970722:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 970711, tested positive for cocaine.

 970930:  Applicant to confinement.

971010:  Special Court Martial:
         Charge: violation of the UCMJ, Article 112a: Wrongfully use cocaine on or abt 8 Jul 97.
         Findings: to Charge and specification thereunder, guilty.
         Sentence: Confinement for 30 days, restriction for 60 days, hard labor without confinement for 30 days, forfeiture of $600 per month for 1 month, reduction to E-1.
         Military Judge awarded 10 days of credit for time served in pretrial confinement.
         CA 941027: Sentence approved and ordered executed.

980114:  Applicant advised of availability of Veterans Administration Drug and Alcohol Rehabilitation program. Applicant refused treatment.

UNDATED:         Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of pattern of misconduct, documented drug abuse and your refusal for treatment . The factual basis for this recommendation was special court-martial conviction of 971010, 4 nonjudicial punishments, 4 6105 counseling entries, your Medical Officer refusal for treatment dated 980113, and your documented drug use.
980303:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board and to obtain copies of documents that will be forwarded to the Commanding General supporting the proposed discharge.

UNDATED:         Commanding Officer, 7 th Engineer Support Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, drug abuse and refusal for treatment.

980312:  Applicant was arrested by California Highway Patrol for CVC 23152(A) MISD DUI. BAC .12%. Applicant released by civil authorities on the quick release program.
980326:  Applicant’s driving privilege suspended for driving under the influence of alcohol/drugs, and arrested by civil authorities.
980327:  The Administrative Board found by vote of 3 to 0 that the allegation set forth in the Notification of Separation Proceedings is supported by a preponderance of the evidence; that the Applicant be discharged; that the characterization of service be under other than honorable conditions; and that the discharge not be suspended.
980515:  SJA review determined the case sufficient in law and fact.

980515:  GCMCA, Commander, 1 st Force Service Support Group directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. The primary basis for separation shall be by reason of misconduct due to drug abuse.

980518:  Report of Medical Examination: Applicant found fit for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980605 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

 Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation. There is clear evidence in the Applicant’s service record that he used illegal drugs. Indeed, the Applicant was convicted at Special Court Martial on 19971010 for violation of UCMJ Article 112a Wrongful use of controlled substance (cocaine). Evidence of such misconduct may be used to characterize a Marine’s discharge as under other than honorable conditions.

Characterization of service as under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. In addition to the aforementioned Special Court Martial, the Applicant’s records contain 4 nonjudicial punishment proceedings for violation of UCMJ Articles 86 (5 specifications) Absence without leave, 91 Disrespect toward noncommissioned officer, and 92 (3 specifications) Failure to obey order, regulation. The Applicant also received 4 retention warnings for deficiencies in performance and conduct. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade in characterization of service. Relief denied.

The Applicant desires an upgrade to continue to live a productive life and provide for his family. To permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. The Board has no authority to upgrade a discharge for the sole purpose of qualifying for benefits or enhancing employment and educational opportunities. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant submitted a character reference and a copy of his EMT Basic course certificate. The Applicant is advised that his efforts need to be more encompassing to include evidence of verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. And so, no relief is granted on this basis.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the discharge at that time. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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